7 minute read
Aboriginal Cultural Heritage – moving from management to engagement
from BBMC Yearbook 2021
by bbminingclub
Gavin Scott, Partner, Norton Rose Fulbright Australia
Photo: Whitehaven
The Queensland Mining industry is well versed in the importance of correctly managing the impacts of mining projects on Aboriginal Cultural Heritage. Queensland’s Aboriginal Cultural Heritage Act 2003 has remained largely unchanged for 18 years and is considered to be at the forefront of balancing development and meaningful engagement with Aboriginal people. Ultimately, this has meant that statutory concepts such as maintaining a duty of care not to cause unlawful harm to Aboriginal cultural heritage are well understood.
Recently, the industry has seen a greater focus towards understanding and managing Environmental, Social and Governance (ESG) risks for natural resources projects. This has had a marked impact on how project developers, shareholders, investors and the broader community have communicated their expectations on how a project should not only manage Aboriginal cultural heritage, but also engage with all impacted Traditional Owners. These expectations only intensified following the 2020 Juukan Gorge incident in Western Australia, which saw the destruction of ancient, sacred caves. The incident spurred a Senate inquiry, encouraged reform to Western Australian
Cultural Heritage legislation, and will prompt most Australian States and Territories to reflect upon the durability of their own Aboriginal cultural heritage legislation. From an ESG risk perspective, Juukan Gorge emphasised that a mere understanding and ‘base-level’ compliance with relevant cultural heritage and native title laws is insufficient in the eyes of stakeholders. The next level sees a shift in focus from “managing” cultural heritage, towards developing meaningful and sustainable relationships with Traditional Owner groups through best practice stakeholder engagement strategies.
A Tale of Two States
An interesting test of how management of Aboriginal cultural heritage can evolve can be seen through a comparison of the relevant laws in Queensland and Western Australia.
Queensland
When Queensland’s Aboriginal Cultural Heritage Act commenced 18 years ago, it instituted the important concept of an “Aboriginal Cultural Heritage Duty of Care”. This duty imposes an obligation on all Queenslanders (including resources companies) to take ‘reasonable and practicable measures’ to ensure that impacts on Aboriginal cultural heritage are avoided or mitigated. These measures include the negotiation and implementation of Cultural Heritage Management Plans. These plans typically provide a detailed assessment of prospective mining areas, a step-bystep plan on how project impact can be mitigated, and advise where physical items can be re-deposited during postrehabilitation. Queensland’s cultural heritage legislation is also conceptually and procedurally tied to the Native Title Act, ensuring that any management plans proposed by project proponents are discussed with the correct Aboriginal party or Aboriginal cultural heritage body for an area prior to impacting cultural heritage. Continued engagement with Aboriginal parties is critical to ensure Cultural Heritage Management Plans are negotiated, implemented and sustained throughout the project’s lifecycle, to reduce delays and cost overruns, and empower parties to work together to protect Aboriginal cultural heritage. Perhaps the temperature of community expectations can be more accurately gauged from Western Australia’s Aboriginal Heritage Act 1972, the oldest cultural heritage regime in Australia and arguably the most inadequate in the present day and age. The legislation embodies a “pre-Mabo mentality” where project proponents can obtain Ministerial Consent to alter, move or destroy cultural heritage sites to make way for a development. Ministerial consent for the excavation or destruction of Aboriginal cultural heritage sites can ultimately be obtained despite any objections from Traditional Owners. The Aboriginal Heritage Act has been up for review since 2012, with a draft bill providing a series of measures in attempts to reduce the risk of another Juukan Gorge incident occurring. These measures include:
• Due diligence and date collection:
Cultural due diligence is mandatory including investigations into Cultural
Heritage prior to any negotiations; contracts or clauses seeking to limit
Aboriginal people's input on Cultural
Heritage will be void, meaning
Aboriginal people can voice their concerns and objections; and all
Aboriginal Cultural Heritage data must be adequately recorded.
• Cultural Heritage Management
Plans: Only plans where valid consultation has occurred and informed consent from Aboriginal parties has been obtained will be approved; plan applications must include a cultural heritage impact statement; and all plans require the proponent to disclose any new information about Aboriginal Cultural
Heritage located in the area and how heritage will be managed or avoided. • Ministerial Intervention: The
Minister is able to issue Stop
Activity and Prohibition Orders in circumstances where an activity is causing harm, or there is imminent threat of harm to Aboriginal cultural heritage; the Minister has the power to amend plans or impose conditions; and if the cultural heritage is of State significance, the Minister can deem it protected even if consent was given to harm it. Despite this proposed modernisation, the Bill has yet to pass through Parliament. Even with this reformative step, the draft bill remains criticised by many Aboriginal groups and representative bodies where it does not really strive to seek international standards on engagement with Traditional Owners and First Nations Groups.
So what should we be doing?
In addition to complying with the cultural heritage requirements of local laws, many proponents are looking to a best practice stakeholder management strategy to maintain a project’s social licence to operate. Considering International Conventions and guidelines for social impact and community engagement helps to understand the benefits of early and meaningful engagement with the impacted community throughout a project’s lifecycle. On an international level, the IFC Performance Standards and the Equator Principles require developers to establish and maintain an ongoing relationship with an impacted community based on ‘informed consultation and participation’ with affected Indigenous communities (Standard 7). As part of this, developers must seek to obtained the community’s ‘Free, Prior and Informed Consent’ (FPIC) in certain circumstances. The IFC Performance Standards also provide thorough guidance on culturally appropriate community engagement processes to minimise overall project impact and risks to Indigenous communities.
IFC Performance Standard 7 is supported and entwined in the most recent version of the Equator Principles, which commenced in 2020. These principles are applicable to financiers who are current signatories to the guidelines. In turn, it is also worth noting that a significant number of banks who finance major resource projects are signatories to the Equator Principles.
Considering how guidance principles apply to Queensland (and other State) projects
The future of development of Cultural Heritage Management Plans or any other similar form of agreement in Queensland requires moving beyond compliance with State-based legislation. While a
project’s ‘end point’ might involve a comprehensive and ‘implementable’ Cultural Heritage Management Plan, in light of the Juukan Gorge incident, we have seen that this may only be achieved by first developing and implementing a best practice stakeholder engagement strategy – i.e. moving from management to engagement. Engagement with all project stakeholders moves beyond local and State law compliance, to demonstrating that a project has seriously considered the management of ESG risks and has progressed towards the development of strong and sustainable relationships with impacted Traditional Owner Groups. A good model for this process could look like the suggestions that follow: 1) Early Engagement: Involvement of the community as a stakeholder in project monitoring in relation to timeframes, delivery and environmental and social impacts is a critical step in ensuring that the support / consent of
Indigenous peoples is maintained and
sustained throughout the entire life of the project.
2) Understanding and listening:
Reputational problems can occur where projects assume that community support and engagement is no longer required following the initial planning of a project. This could not be further from the reality of ensuring a project’s sustainability.
Proponents, alongside project developers, need to consider the land connectedness of an Indigenous community and the deep spiritual meaning and connection that many indigenous peoples have with the land that will be impacted by a project.
3) Legitimacy, Credibility and
Trust: Legitimacy can be shown through community, the provision of information to impacted communities, and the resulting acceptance of the development by the community. Credibility can be demonstrated through standing by the commitments made to communities and the
establishment of real partnership roles and responsibilities. Trust can be developed by the collaboration of the project proponent and the community, in order to foster a mutually beneficial outcome according to principles of intergenerational equity.
The challenge ahead
Following Juukan Gorge, many resources projects have begun a comprehensive audit of their own heritage systems, agreements and relationships with Traditional Owner groups. For Queensland proponents, the challenge that remains involves continuing to uphold statutory duty of care obligations, while ensuring that cultural heritage and relationships with Traditional Owner groups remain central to the project’s lifecycle. While this will require a shift in project focus from ‘management’ to ‘engagement’, it will ultimately result in a more sustainable process and management of ESG risks in line with community expectations.
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